Foss v. North Dakota Workmen's Compensation Bureau

• Decision Date: 31 January 1974
• Docket Number: No. 8949,8949
• Citation: 214 N.W.2d 519
• Parties: Claim of Emma FOSS (Death of Orphy Foss), Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 519

214 N.W.2d 519

Claim of Emma FOSS (Death of Orphy Foss), Appellant, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellee.

Civ. No. 8949.

Supreme Court of North Dakota.

Jan. 31, 1974.

Syllabus by the Court

1. Our review on appeal of finding of fact of the Workmen's Compensation Bureau is limited to determining whether there is substantial evidence to support the Bureau's finding of fact.

2. A claimant against the Workmen's Compensation Fund has the burden of establishing his right to participate therein.

3. For reasons stated in the opinion, it is held that the evidence presented is insufficient to prove a causal connection between the decedent's employment and his death, and that the finding of fact of the Workmen's Compensation Bureau was supported by substantial evidence.

William W. Binek and Carlton G. Nelson, Grand Forks, for appellant.

Allen I. Olson, Atty. Gen., and David L. Evans, Sp. Asst. Atty. Gen., North Dakota Workmen's Compensation Bureau, for appellee.

PAULSON, Judge.

This is an appeal by Emma Foss from a judgment of the Grand Forks County District Court, which affirmed an order of the Workmen's Compensation Bureau (hereinafter Bureau) dismissing her claim for death benefits. Mrs. Foss filed her claim as the result of the death of her husband, Orphy Foss, on March 20, 1969.

On the morning of March 20, 1969, Orphy Foss was to start a new job as a finish carpenter with Anda Construction Company of Moorhead, Minnesota (hereinafter Anda), on a project in Grand Forks, North Dakota. A finish carpenter is one who is responsible for 'finish carpentry', such as trimming windows, hanging doors, and installing shelf boards and baseboards. Because of the special equipment required for such jobs, Anda required finish carpenters to furnish all necessary tools except for extension cords and skill saws.

Even though Mr. Foss was to be doing non-finish carpentry for the first few days, he nevertheless rose early on the morning of March 20 and carried his tools from the basement of his home and loaded them in the trunk of his car. These tools included a large tool box weighing approximately $200 pounds, a table saw, skill saws, a jointer, levels, door-hanging equipment, and other miscellaneous tools.

Upon completion of this loading, and before sitting down to eat his breakfast, Mr. Foss complained to his wife of chest pains. After breakfast he drove to Anda's jobsite, arriving there at about 7:45 a.m., and was given work assignments by Mr. Gary Morse, the job foreman. Mr. Foss then took some small hand tools to his designated work area and spent the morning putting 2 4 trimmers alongside the doors and backing on the walls on which sheetrock could be nailed, and doing some insulating around windows.

At approximately 11:30 a.m., Mr. Morse talked to Mr. Foss and asked him if he wanted to go to lunch. Mr. Foss answered in the negative, saying that he usually had his lunch at twelve o'clock noon and that he would eat lunch in his car.

At approximately 7:30 that evening, two workmen returned to the Anda jobsite, where they noticed Mr. Foss's car still parked in the street. Upon investigation they found Mr. Foss slumped over in his car, dead. His lunch was laid out in the car, unfinished.

The death certificate, which was filed with the clerk of the district court, was signed by Dr. Richard H. Leigh, the Grand Forks County coroner, who listed the immediate cause of Mr. Foss's death as myocardial arrest due to coronary occlusion and myocardial failure; and who estimated that death occurred at 4:00 p.m. on March 20, 1969. Chronic emphysema and asthma were listed as other contributing factors. No autopsy was performed.

On October 10, 1969, Emma Foss filed a claim with the Bureau for death benefits. Her claim was dismissed by the Bureau on April 16, 1970, and Mrs. Foss requested a rehearing, which was held on January 28, 1971, and which resulted in a second dismissal by the Bureau, on May 10, 1971. Mrs. Foss then appealed to the Grand Forks County District Court, which appeal was later dismissed without prejudice, pursuant to a stipulation for dismissal between her attorney and the attorney for the Bureau. After the dismissal by the district court, the matter was remanded to the Bureau for further evidence and Mrs. Foss's claim, on June 2, 1972, was again dismissed. Once again Mrs. Foss appealed to the district court, which, after a hearing, entered judgment affirming the order of the Bureau dismissing her claim.

The primary issue is whether sufficient evidence was produced by the claimant to prove that the death of Orphy Foss was causally related to his employment.

The Workmen's Compensation Bureau is an administrative agency and, as such, appeals from its decisions are governed by the Administrative Agencies Practice Act, Chapter 28--32 of the North Dakota Century Code. Section 28--32--19 of that chapter provides:

'Scope of and procedure on appeal from determination of administrative agency.--The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. If additional testimony is taken by the administrative agency or if additional findings of fact, conclusions of law, or a new decision shall be filed pursuant to section 28--32--18, such evidence, findings, conclusions, and decision shall constitute a part of the record filed with the court. After such hearing, the court shall affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law, or that it is in violation of the constitutional rights of the appellant, or that any of the provisions of this chapter have not been complied with in the proceedings before the agency, or that the rules or procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by its findings of fact. If the decision of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the decision of the court.'

In 1950 this court decided the case of Feist v. North Dakota Workmen's Compensation Bureau, 77 N.D. 267, 42 N.W.2d 665 (1950), which was an appeal involving two issues of fact: (1) whether the illness of the respondent's deceased husband with atypical pneumonia was fairly traceable to his employment; and (2) whether two cerebral hemorrhages suffered by the deceased husband, and his resulting death, were also fairly traceable to his employment. The first issue was disposed of by determining that the atypical pneumonia was fairly traceable to his employment. The second issue was not decided, because of the unsatisfactory state of the evidence, and the case was remanded to the Bureau to give the claimant an opportunity to submit further proof.

In Feist, supra 42 N.W.2d at 666, Mr. Justice Christianson, writing the opinion of the court, construed § 28--3219, N.D.R.C.1943, (§ 28--32--19, N.D.C.C.), as follows:

'Under the statutes providing for an appeal from the decisions of the Workmen's Compensation Bureau it was incumbent upon the trial court to review the evidence to ascertain and determine whether the findings of fact of the Compensation Bureau were or were not supported by the evidence; and if the court found that the findings were not supported by the evidence then it was incumbent upon the court to render decision accordingly and to require that the decision of the Bureau be modified or reversed as the justice of the cause might require. NDRC 1943, Sec. 28--3219; In re Northern Pacific Ry. Co., 74 N.D. 416, 23 N.W.2d 49.'

In the instant case, the district court reviewed the evidence contained in the record and determined that the finding of fact of the Bureau was supported by the evidence. That decision has now been appealed to this court.

We must review the decision of the district court in an appeal from a decision of an administrative agency in the same manner as we would review any case tried to that court without a jury. § 28--32--21, N.D.C.C.

The scope of judicial review of Workmen's Compensation Bureau decisions was ascertained by this court in the case of Geo. E. Haggart, Inc. v. North Dakota Work. Comp. Bur., 171 N.W.2d 104 (1969), wherein it held, in paragraph 2 of the syllabus:

'The trial de novo in the district court on the record made before an administrative agency and in the Supreme Court on an appeal from the district court in an administrative agency proceeding, as it relates to a determination of the facts, is limited to determining whether there is substantial evidence to support the administrative agency's findings of fact.'

Mr. Justice Erickstad, writing the opinion of the court, traced the history of judicial review of Workmen's Compensation Bureau decisions in North Dakota; and, concluding that the substantial evidence standard of judicial review was applicable in such proceedings, stated, in Haggart, supra 171 N.W.2d at 111:

'However, we are now inclined to believe that a trial de novo in the district court on the record made before the administrative agency and in this court on an appeal from the district court, as it relates to a determination of the facts, should be limited to determining whether there is substantial evidence to support the administrative agency's findings of fact. Any other construction of the statutes ignores the provision of § 28--32--19 which requires that after a hearing on the appeal from a decision of an administrative agency, the court shall affirm the decision of the agency unless it shall find that the findings of fact made by the agency are not supported by the evidence.

'If the provision in § 65--01--01 (originally § 1 of ch. 162 of...